Orissa High Court
Ananda Chandra Das vs Departmental Promotion Committee ... on 5 October, 2023
ORISSA HIGH COURT: CUTTACK
W.P.(C) No.9589 of 2019
Ananda Chandra Das ..... Petitioner
Versus
Departmental Promotion Committee ..... Opp. Parties
of the Odisha State Housing Board,
Bhubaneswar & others
For Petitioner : Mr. S. Sahoo, Adv.
For Opp. Parties : Mr. S. Mishra, Adv.
(For O.P. No.1)
Mr. Ch. Satyajit Mishra, AGA
(for O.P. Nos. 2 and 3)
CORAM: JUSTICE SANJAY KUMAR MISHRA
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Date of Hearing: 11.08.2023, Date of Judgment: 05.10.2023
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S.K. Mishra, J.
The Petitioner, who belongs to Scheduled Caste category and works as Senior Accountant under the Odisha State Housing Board (OSHB), has preferred the Writ Petition challenging the legality and validity of the decision dated 25.01.2019 of the Departmental Promotion Committee (DPC) of the OSHB, wherein the only post of Head Accountant was filled up from general category. The said challenge has been made alleging violation of Section 10 of the Odisha Reservation of Vacancies in Posts and Services (for Scheduled Castes and Scheduled Tribes) Act, 1975, shortly, the Act, 1975, read with "the Schedule" as prescribed under Rule 3 (Model Roster) of the Odisha Reservation of Vacancies in the Posts and Services (for Scheduled Castes and Scheduled Tribes) Rules, 1976, shortly, the Rules, 1976.
2. The factual matrix of the case, in nutshell, is that the Petitioner was initially appointed as Junior Accountant after facing selection process of the Board as a SC candidate. On 15.07.2005, he was promoted to the post of Senior Accountant on the basis of Seniority-Cum-Merit as a SC candidate. He is performing his duties and responsibilities to the best satisfaction of his authority from the date of his joining. There was a disciplinary proceeding initiated against the Petitioner based on an allegation of a private person about discrepancy in allotment of house in OSHB. But, in the enquiry the charges could not be established. After completion of the Departmental Proceeding, his seniority was fixed over and above of his juniors, who had got promotions superseding him. Accordingly, the Page 2 of 24 Petitioner's seniority and financial benefits were allowed vide Office Order dated 01.09.2008.
It is further case of the Petitioner that a Final Gradation List as on 12.04.2012 of the Accounts Personnel of the Board was published vide Memo No.5885, dated 26.04.2012. In the list of Senior Accountants, Petitioner's name was reflected at Sl. No.7. Sl. No.1-Dillip Kumar Dash was promoted to the post of Accounts Officer (General) since 2017. Sl. Nos. 2 and 3 were superannuated. One Kamal Kumar Rout (O.P. No.4) was promoted to the said post in terms of the present DPC under challenge, but retired on 30.04.2019. As per the Gradation List, the Petitioner is the senior most Scheduled Caste person and his first entry into the Board's service was on 21.07.1993. Though his promotion to the post was counted on 15.07.2005, but as per Annexure-2, his seniority was fixed over and above his junior, namely, Niranjan Mallick (SC). Accordingly, he is the senior most amongst the scheduled caste employees holding the post of Senior Accountant.
It is further case of the Petitioner that the DPC was constituted on 30.05.2014, wherein one Dillip Kumar Dash, Senior Accountant was promoted to the post of Head Page 3 of 24 Accountant violating the roster policy. Therefore, since 1990, though four times promotions were given to various candidates to the post of Head Accountant, but no SC/ST/OBC employee was promoted to the said post. In the meanwhile, one Mahendra Kumar Biswal, Head Accountant retired on 31.07.2013 and another namely, Sri Sital Chandra Mohanty retired on 30.11.2014. As one post has been filled up in the year 2014 from the general category, thereafter one Head Accountant post was vacant at that point of time.
The case of the Petitioner is that since one Head Accountant post was vacant, he filed several representations before the Authority ventilating his grievances about his promotion to the post of Head Accountant as prescribed in "the Schedule" in accordance with the Rule 3 (Model Roster) of the Rules, 1976. The SC and ST Department also requested the OSHB vide letter dated 15.01.2016 to follow the reservation policy.
Due to non-promotion to the post of Head Accountant, the Petitioner approached this Court by filing W.P.(C) No.3396 of 2016, which was disposed of vide Order dated 29.02.2016 directing the Secretary, OSHB to dispose of his representation Page 4 of 24 dated 18.12.2015. Pursuant to such direction, the representation of the Petitioner was disposed of on 19.04.2016 indicating therein that in OSHB, the number of sanctioned post of Head Accountants were two. The same were filled up by promotion during 1990 and 1992 from amongst the eligible Senior Accountants following proper procedure. Out of the two sanctioned post of Head Accountants, one post of Head Accountant has been upgraded to Accounts Officer (General) by the Government in H & U.D. Department vide letter dated 22.03.2014 to be filled up by giving promotion from amongst the senior most Head Accountant following proper procedure. After up-gradation of one post of Head Accountant by the Government, the sanctioned post of Head Accountant comes to one. It was further stated vide the said communication that the sanctioned post of Head Accountant being one, one general candidate is holding the said position being the senior most Senior Accountant in the Gradation List through DPC. It is alleged that while disposing of the representation of the Petitioner, the letter of Government in ST and SC Department dated 15.03.2007 has been interpreted in a wrong way. Page 5 of 24
The grievance of the Petitioner is that the Order dated 20.04.2016 was mechanical, being silent about the promotion and implementation of the 'Model Roster'. Hence, the Petitioner filed a representation seeking review of the Order dated 20.04.2016. Due to the inaction of the Authority to act on his representation, the Petitioner again preferred W.P.(C) No.19277 of 2016. While the matter is pending, the DPC was held on 25.01.2019. Again promotions were given to the post of Head Accountant. In the DPC, one Kamal Kumar Rout, Senior Accountant was promoted to the post of Head Accountant, who retired from service after attaining the age of superannuation on 30.04.2019. Hence, W.P.(C) No.19277 of 2016 became infructuous in the changed circumstances. It is the case of the Petitioner that while issuing the impugned promotion order, the ORV Act was not followed. The same is now awaiting for administrative approval in the Government (Department of H & U.D.) It has further been averred in the Writ Petition that the post of 'Head Accountant' of the Board is filled up on the basis of seniority from amongst the Senior Accountant. The said post was previously filled up from amongst general category each Page 6 of 24 time violating the ORV Act and Rules. The Model Roster (Rule
3), as prescribed in "the Schedule", has been deliberately violated by the DPC held on 25.01.2019. The Opposite Party No.4 retired from service on 30.04.2019. As the Petitioner is the senior most among the SC/ST Senior Accountants, he ought to have been promoted to the post as per the seniority criteria fixed under Section 10(3) of the ORV Act, which the DPC has violated. Therefore, the decision of the DPC was challenged in W.P.(C) No.7993 of 2019. As there were some discrepancies in the averments made in the Writ Petition, the same was allowed to be withdrawn giving liberty to the Petitioner to file a better Petition. Hence, this Writ Petition has been preferred with changes in the averments.
It is further averred in the Writ Petition that the DPC has arbitrarily not allowed the Petitioner's promotion violating the Model Roster under Rule 3 of the ORV (for Scheduled Castes and Scheduled Tribes) Rules, 1976 and Section 10 of the ORV Act. It has been stated that in the last vacancy, though the Petitioner was eligible to be promoted to the said post as he belongs to SC category, the DPC of OSHB held on 25.01.2019 Page 7 of 24 has acted arbitrarily violating ORV Act and Rules, which are under challenge in the present Writ Petition.
3. Being noticed, the contesting Opposite Party No.1 has filed Counter Affidavit stating that the subject matter and the question of law in W.P.(C) No.19266 of 2016 pending before this Court as well as in the present Writ Petition being same, the present Writ Petition is misconceived and not maintainable and liable to be dismissed. It has further been stated that as per the ruling of the apex Court, reservation cannot exceed the ceiling limit of 50% on post-specific roster, as has been clarified in the Circular dated 15.03.2007 of the Government of Odisha, ST and SC Department.
It is stated in the Counter that the service record of the Petitioner is not clean. The order passed by the Disciplinary Authority as well as the Appellate Authority imposing penalty on the Petitioner have been challenged by the Petitioner in W.P.(C) No.4550 of 2013 and the same is still pending for adjudication before this Court. It is further stated in the Counter that one Dillip Kumar Dash was promoted from the post of Senior Accountant to the post of Head Accountant taking into account the seniority in the Gradation List (Annexure-5) and the existing Page 8 of 24 Rules. There were two posts of Head Accountants in OSHB. Out of which, one post of Head Accountant was upgraded to the post of Accounts Officer (General) as per the Order dated 22.03.2014 of the Government in H & U.D. Department. Accordingly, after upgradation of one post of Head Accountant, the sanctioned post of Head Accountant comes to one only. The post of Head Accountant having been reduced to one (single post) in OSHB, the question of applicability of reservation policy of SC and ST for the said post does not arise. After upgradation of one post of Head Accountant to the post of Accounts Officer, Sital Chandra Mohanty, being the senior most in the gradation list of Head Accountants, was promoted to the post of Accounts Officer and retired as such on attaining the age of superannuation on 30.11.2014. Similarly, Mahendra Kumar Biswal retired on 31.07.2013 as Head Accountant, on attaining the age of superannuation. After retirement of Mahendra Kumar Biswal, one Dillip Kumar Dash, being the senior most among the Senior Accountants in the Gradation List, was promoted to the only post of Head Accountant. It is further stated that after elevation of Dillip Kumar Dash from the post of Head Accountant to the post of Accounts Officer, the only post of Head Accountant has Page 9 of 24 fallen vacant and the same shall be filled up through DPC after following due procedure and taking into account the seniority in the gradation list of Senior Accountants.
4. In response to the Counter filed by the Opposite Party No.1, a Rejoinder Affidavit has been filed by the Petitioner stating therein that as averments made in Paragraphs 3.4 to 3.6 of the Writ Petition have not been disputed in the Counter Affidavit, pendency of W.P.(C) No.4550 of 2013 cannot stand on the way of the Petitioner to get his claim. It has further been stated in the Rejoinder Affidavit that in view of the provisions under Section 3(j) of the ORV Act, 1975, the said Act shall have no application in the present case as the post of Accounts Officer (General) in OSHB has been created by way of upgradation of Head Accountant. The number of sanctioned post of Head Accountants is two and out of the said sanctioned posts, one post has been upgraded to Accounts Officer (General) on 22.03.2014. The upgradation of a post cannot form any grade or cadre, the same being an up-gradation simpliciter. In an up-gradation, the candidate continues to hold the same post as the same is not re-structuring the cadre. On the other hand, upgradation merely confers a financial benefit by raising the Page 10 of 24 scale of pay. The letter of the State Government dated 22.03.2014, as at Annexure-B, does not disclose that upgradation of one post of Head Accountant to Accounts Officer (General) forms a separate cadre or grade. Hence, it cannot be construed that even after upgradation of one post of Head Accountant; remaining one post of Head Accountant of OSHB will be treated as a single post in the cadre of Head Accountant. Therefore, the reservation for SC and ST as per the Act is applicable to the Petitioner's case. As per Model Roster, the promotion to the post of Head Accountant at 4th instance falls against "SC" category. Accordingly, the name of the Petitioner deserves to be recommended for promotion to the post of Head Accountant w.e.f. 25.01.2019.
5. Apart from filing Rejoinder Affidavit, a further Affidavit dated 25.09.2022 has been filed by the Petitioner to bring on record documents to demonstrate before this Court that on 30.12.2020, the DPC recommended to promote one Bishnu Prasad Patra, Senior Accountant to the post of Head Accountant subject to the result of W.P.(C) No. 19277 of 2016 and W.P.(C) No.9589 of 2019 filed by the Petitioner. Further, Bishnu Prasad Patra was promoted to the post of Accounts Officer (General) Page 11 of 24 again indicating therein that said promotion is subject to the result of the above Writ Petitions. The Minutes of the DPC Meeting held on 30.12.2020 so also dated 05.09.2022 pertaining to promotion to the post of Head Accountant and Accounts Officer (General) respectively, indicate that the sanctioned post of Head Accountant and Accounts Officer (General) being one single sanctioned post lying vacant in OSHB, applicability of ORV Act does not arise.
6. Mr. Sahoo, learned Counsel for the Petitioner submitted that law is well settled that it is not at all the posts in a particular category that are so upgraded, but only a part of it. That is because their posts continue in the same category, though a higher scale of pay is fixed for those posts. This phenomenon does not differ from the case where all the posts are upgraded. Those who get the higher grade cannot be said to have been promoted because there is no question of appointment from one post to another and the candidates continue to hold the same post.
7. Learned Counsel for the Petitioner further submitted that the decision of the DPC taken on 25.01.2019 is violative of Section 10 of the ORV Act read with the Model Roster as per Page 12 of 24 Section 3 of the ORV (SC/ST) Rules, 1976 in allowing the promotion to the post of Head Accountant. It is further pleaded that the OSHB, being an instrumentality of the State Government, should follow the reservation policy of the State in terms of the State Government's Circular. The Odisha Civil Services (Criteria for Promotion) Rules, 1992 with amendments are being followed by the OSHB. Hence, non-promotion of SC personnel to the post of Head Accountant is arbitrary, illegal and non-application of mind and liable to be quashed.
Learned Counsel for the Petitioner further submitted that Section 10(3) of the ORV Act in respect of promotions ought to be based on seniority subject to fitness. In such cases, the SC/ST candidates will be promoted to the next higher post or grade against the reserved vacancies irrespective of their position in the Gradation List subject to the satisfaction of prescribed minimum qualification and experience and are found fit for such promotion.
8. Learned Counsel for the Petitioner relied upon the judgments in Union of India v. Pushpa Rani and others, reported in 2008 AIR SCW 6564: AIR 2009 SC (SUPP) 1337, Bharat Sanchar Nigam Ltd. v. R. Santhakumari Velusamy Page 13 of 24 and others, reported in AIR 2011 SC 3793: 2011 AIR SCW 5130, All India Non SC/ST Employees Association Railway v. V.K. Agarwal, reported in AIR 2002 Punjab and Haryana 16:
AIR Online 2001 SC and K. Meganathan v. The State of Tamil Nadu, reported in (2014) 7 MAD LJ 43 : 2014 LAB. I.C. 1776, to substantiate the claim of the Petitioner for his promotion to the post of Head Accountant applying the principle of reservation under the ORV Act, 1975.
9. Mr. Mishra, learned Counsel for the Opposite Party No.1, drawing attention of this Court to the communication made by the Director, Housing & Ex-Officio Addl. Secretary to Government, Government of Odisha, Housing and Urban Development Department dated 22.03.2014 (Annexure-B), submitted that in terms of Proviso to Sub-Section (4) of Section 10 of the Odisha Housing Board Act, 1968, sanction was accorded for creation of post of "Accounts Officer (General)" in OSHB in the scale of pay Rs.9300-34800 with grade pay of Rs.4600 by way of upgradation of one post of Head Accountant indicating therein that the said post should be filled up from among the senior most Accountants working in the Board observing all formalities and for the said purpose, the feeder Page 14 of 24 post for promotion to the post of Accounts Officer (General) is Head Accountant. He further submitted that after creation of post of Accounts Officer (General) in OSHB by upgrading one post of Head Accountant, the total post of Head Accountant in OSHB became one. After such upgradation, the remaining post of Head Accountant being a single post, in view of Sub-Section
(j) of Section 3 of the ORV Act, 1975, the Model Roster on 80 points, as prescribed in the Schedule under Rule-3 of the ORV Rules, 1976 is not applicable to the case of the Petitioner. Hence, the prayer made in the Writ Petition to promote the Petitioner to the post of Head Accountant applying the provisions of ORV Act, 1975 and the Schedule made under the ORV Rules, 1976 is misconceived and the Writ Petition deserves to be dismissed.
10. From the pleading of the parties, so also submissions made by the learned Counsel for the Parties, the following issues emerge to be decided in the present lis:
(i) Out of two posts of Head Accountants, after upgradation of one post of Head Accountant to the post of Accounts Officer (General), whether the available post for promotion to the post of Head Accountant from the feeder post of Senior Accountant would be one post or such creation of post of Accounts Officer (General) by way of Page 15 of 24 upgradation is to be treated as an upgradation simpliciter?
(ii) Whether the candidate, who is appointed in the said upgraded post of Accounts Officer (General) by way of promotion, continues to hold the same post of Head Accountant?
(iii) Whether such upgradation merely confers a financial benefit in favour of a candidate by raising the scale of pay?
11. Before dealing with the issues as detailed above, it would be apt to reproduce below the contents of letter dated 22.03.2014 as at Annexure B to the Counter, filed by the OSHB (Opposite Party No.1).
"GOVERNMENT OF ODISA HOUSING & URBAN DEVELOPMENT DEPARTENT No.7011/HUD., Dated the 22.03.2014 HUD-13-HU-58-HR-18-01/14 From Shri D. Senapati, Director, Housing & Ex-Officio Addl. Secretary to Government To The Secretary, Odisha State Housing Board, Bhubaneswar.
Sub: Sanction to the creation of the post of Accounts Officer (General) in Odisha State Housing Board.
Sir, I am directed to invite a reference to H & U.D. Department Letter No.10960/HUD dt.7.4.2000 and your letter No.8580/OSHB dt.12.6.2008 on the above mentioned subject cited above and to say that Government have been pleased to sanction under proviso to Sub-Section (4) of Section-10 of Odisha Page 16 of 24 Housing Board Act, 1968 to the creation of the post of Accounts officer (General) in Odisha State Housing Board in the scale of pay Rs.9300-34800 with Grade pay Rs.4600 by way of up gradation of one post of Head Accountant.
2. The post of Accounts Officer (General) should be filled up from among the senior most Head Accountants working in the Board observing all formalities.
3. This has been concurred in by Finance Department, Government of Odisha vide U.O.R. No.32-WF-I Dt.20.01.14.
4. The expenditure in connection with creation of the post of Accounts Officer (General) should be met from its own fund by the Odisha State Housing Board, Bhubaneswar.
Yours faithfully, Sd/-
Director, Housing & Ex-Officio Addl. Secretary to Government"
(Emphasis supplied)
12. As is revealed from the said communication dated 22.03.2014 (supra), there is a reference to Sub-Section (4) of Section-10 of the OSHB Act, 1968, which is extracted below.
"10. (1) xxx (2) xxx (3) xxx (4) Subject to the rules made in that behalf the Board shall have power to create any post on its establishment:
Provided that no new post in the scale of pay the maximum of which exceeds five hundred rupees shall be created by the Board without the previous sanction of the State Government."
(Emphasis supplied) Page 17 of 24
13. Since there is a reference to letter No.10960/HUD dated 07.04.2000 of the Housing and Urban Development Department so also letter dated 12.06.2008 of OSHB in the letter dated 22.03.2014 as at Annexure-B to the Counter Affidavit filed by OSHB, on being directed by this Court, the learned Counsel for the Opposite Party No.1 (OSHB), so also learned Counsel for the State produced the said communications supported with Affidavits. Contents of the letter dated 12.06.2008 being relevant for proper adjudication of the present lis, is extracted below:
" SACHIVALAYA MARG, BHUBANESWAR Phone: (0674) 2393524, EPBAX: (0674) 2391542, 2390141 Visit us at : www.ori.nic.in /oshb No.8580/OSHB Date : 12 June, 2008 IE - 124/07 From:- Sri B. Bahinipati, OAS-I(SB) Secretary.
To The Director, Housing-cum-
Addl. Secretary to Govt.,
H & U.D. Department
Sub:- Conversion of the post of Officer-on-Spl.
Duty to that of Accounts Officer (General) Ref:- (1)Govt. in H & U.D. Deptt. letter No.7103 Dt.1.3.1997,No.10960/HUD, Dt.7.4.2000. No.28811/HUD, dt. 8.12.2006 (2) This Office letter No.18518,dt. 29.11.2004, 5465 Dt. 9.3.2005, No.4169/ OSHB,Dt.11.3.2008 Page 18 of 24 Sir, I am directed to invite a reference to the above mentioned subject and to say that in obedience to Govt. in H & U.D. Deptt. instruction received from time to time, the Board in its 244th Board Meeting held on 12.05.2008 has finally decided to 'convert' an equivalent post of Officer-on-Spl. Duty to that of Accounts Officer (General) for the purpose of providing promotion berth, to Head Accountants in view of increasing work load of O.S.H.B. on accounting matter day by day.
Govt. in H & U.D. Deptt. has already been apprised of the financial implication to be incurred by O.S.H.B. on account of filling up of the post of Accounts Officer (General) from among the Head Accountants vide this Office Letter No.5465 Dtd. 9.3.2005.
The agenda note together with the minutes of the Board thereon is enclosed for kind perusal and reference.
In view of the above, I would request you to kindly look into the matter and necessary Govt. approval on this regard may please be communicated to this office at an early date for taking further course of action at this end.
Yours faithfully,
Encl:-As above Sd/-
Secretary"
(Emphasis supplied)
14. From the contents of the said letter dated 12.06.2008 of the Secretary, OSHB, Bhubaneswar as extracted above so also the provisions enshrined under the Odisha Housing Board Act, 1968, it is amply clear that OSHB approached the State Government for creation of post of "Accounts Officer (General)" Page 19 of 24
in OSHB pursuant to 244th Board Meeting held on 12.05.2008, vide which it was decided to convert an equivalent post of Officer on Special Duty to that of Accounts Officer (General) for the purpose of providing promotional berth to Head Accountants. Pursuant to the same, sanction was accorded by the State Government vide communication dated 22.03.2014 with regard to creation of post of Accounts Officer (General) by way of upgradation/conversion of one post of Head Accountant.
Admittedly, the total sanctioned post of "Head Accountant"
being two, after upgradation of one such post for creation of the post of Accounts Officer (General) to be filled up by way of promotion, there is only one post remaining in the said cadre of Head Accountant for promotion to the said post. The feeder post for promotion to the said post of Head Accountant is Senior Accountant, which the Petitioner is holding at present. Petitioner's prayer in the Writ Petition is to promote him to the post of Head Accountant by setting aside the ordering portion of the Minutes of the DPC Meeting held on 25.01.2019, as at Annexure-11, pertaining to "Head Accountant".
15. The Judgments cited by the learned Counsel for the Petitioner are not applicable to the facts and circumstances of Page 20 of 24 the present case. Rather, in Bharat Sanchar Nigam Ltd. (supra), vide Paragraph-21, it was held as follows:
21. On a careful analysis of the principles relating to promotion and upgradation in the light of the aforesaid decisions, the following principles emerge:
(i) Promotion is an advancement in rank or grade or both and is a step towards advancement to higher position, grade or honour and dignity. Though in the traditional sense promotion refers to advancement to a higher post, in its wider sense, promotion may include an advancement to a higher pay scale without moving to a different post. But the mere fact that both - that is advancement to a higher position and advancement to a higher pay scale - are described by the common term 'promotion', does not mean that they are the same. The two types of promotion are distinct and have different connotations and consequences.
(ii) Upgradation merely confers a financial benefit by raising the scale of pay of the post without there being movement from a lower position to a higher position. In an upgradation, the candidate continues to hold the same post without any change in the duties and responsibilities but merely gets a higher pay scale.
(iii) Therefore, when there is an advancement to a higher pay scale without change of post, it may be referred to as upgradation or promotion to a higher pay scale. But there is still difference between the two. Where the advancement to a higher pay scale without change of post is available to everyone who satisfies the eligibility conditions, without undergoing any process of selection, it will be upgradation. But if the advancement to a higher pay scale without change of post is as a result of some process which has elements of selection, then it will be a promotion to a higher pay scale. In other words, upgradation by application of a process of selection, as contrasted from an upgradation simpliciter can be said to be a promotion in its wider sense that is advancement to a higher pay scale.
(iv) Generally, upgradation relates to and applies to all positions in a category, who have completed a minimum period of service. Upgradation, can also be restricted to a percentage of posts in a cadre with reference to seniority Page 21 of 24 (instead of being made available to all employees in the category) and it will still be an upgradation simpliciter.
But if there is a process of selection or consideration of comparative merit or suitability for granting the upgradation or benefit of advancement to a higher pay scale, it will be a promotion. A mere screening to eliminate such employees whose service records may contain adverse entries or who might have suffered punishment, may not amount to a process of selection leading to promotion and the elimination may still be a part of the process of upgradation simpliciter. Where the upgradation involves a process of selection criteria similar to those applicable to promotion, then it will, in effect, be a promotion, though termed as upgradation.
(v) Where the process is an upgradation simpliciter, there is no need to apply rules of reservation. But where the upgradation involves selection process and is therefore a promotion, rules of reservation will apply.
(vi) Where there is a restructuring of some cadres resulting in creation of additional posts and filling of those vacancies by those who satisfy the conditions of eligibility which includes a minimum period of service, will attract the rules of reservation. On the other hand, where the restructuring of posts does not involve creation of additional posts but merely results in some of the existing posts being placed in a higher grade to provide relief against stagnation, the said process does not invite reservation."
(Emphasis supplied)
16. Since the Opposite Party No.1 sought for creation of post and a clear cut sanction was accorded for creation of post of "Accounts Officer (General)" in terms of proviso under Section 10(4) of the Orissa Housing Board Act, 1968, this Court is of the view that it is not a case of mere upgradation of post of Head Accountant to the Accounts Officer (General). After such creation of post by up-gradation, admittedly, there was/is only Page 22 of 24 one post of Head Accountant remaining with the Opposite Party No.1 (OSHB) to be filled up by way of promotion, and in view of provisions enshrined under Section 3(j) of the ORV Act, 1975 and the ORV Rules 1976 made thereunder, the ORV Act and Rules are not to be followed for promotion to the said single post of "Head Accountant".
17. From the legal provisions enshrined under Section 10 (4) of the Odisha Housing Board Act, 1968 read with the correspondences made between OSHB and the State Government, including the sanction accorded vide communication dated 22.03.2014 (Annexure-B), as has been detailed above, it is amply clear that as required under proviso to Sub-Section (4) of Section 10 of the Act, 1968, sanction was accorded by the State Government for creation of post of Accounts Officer (General) in the scale of pay of Rs. 9300- 34800/- with Grade pay Rs.4600/- by way of upgradation of one post of Head Accountant, in response to letter dated 12.06.2008 of the Housing Board vide which it was communicated to Government that Board has decided to convert on equivalent post to that of Accounts Officer (General) for the purpose of providing promotional berth to Head Page 23 of 24 Accountants. After such upgradation, the remaining post of Head Accountant being one, in view of Sub-Section (f) under Section 3 of the ORV Act, 1975, this Court is of further view that the said Act is inapplicable to the case of the Petitioner, which is the sole basis to make such a prayer for promotion to the post of Head Accountant applying the provisions of ORV Act, 1975.
18. From the facts and documents on record, as discussed above, so also judgment of the apex Court, this Court is also of the view that the stand of the Petitioner that such upgradation of post of Head Accountant for creation of the post of Accounts Officer (General) is a mere upgradation simpliciter and does not form any separate grade or cadre and the candidate continues to hold the same post of Head Account, is misconceived. Therefore, all the issues, as detailed above, are answered herewith against the Petitioner. The Writ Petition, being devoid of any merit, stands dismissed. No order as to cost.
(S.K. Mishra) Signature Not Verified Judge Digitally Signed Signed by: PADMA CHARAN DASH Orissa High Court, Cuttack Designation: Personal Assistant Dated, 5th October, 2023/PCD Reason: Authentication Location: orissa high court cuttack Date: 06-Oct-2023 12:50:47 Page 24 of 24